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Chapter 4 - Adjudications

Part II

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Goldberg's Children

Goldberg created the notion of an entitlement, i.e., a continued right to a government benefit as long as you met the triggering criteria for the benefit.

The next cases explored when this applied to employment, outside of civil service protections and public employee union contracts, which are more expansive than the constitutional minimum.

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Employment Hearings

Only government employees have constitutional rights to a hearing and due process State rights are defined by the state law, not the US

constitution, and can be broader than the US rights States cannot provide less than the US Constitutional

minimum due process Getting a hearing does not mean you get to keep the

job States and congress can create rights to employment due

process for private employees

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Boards of Regents v Roth, 408 U.S. 564 (1972)

What were the terms of the contract? Why did he claim he was fired?

Is this before the court? What process did he want? Did the university claim he had done anything

wrong? Could this have changed the result?

Did he get the hearing?

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Perry v. Sinderman, 408 U.S. 593 (1972)

Facts Taught for 10 years University policy was to not fire without cause after 7

years Fired without cause

What process did he want? Why was the university policy on continued employment

critical? What is going on with LSU lecturers?

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New Property v. Old Property

How do these cases create the "new property" How are the rights different for new property versus old

property? How is the process different if I take your medical license,

versus taking your land? What if I abolish your job or your welfare entitlement

through legislation? Executive budget reallocation, i.e., a rule, not an

adjudication How strong is the notion of new property?

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LA Law Note - Title 49, Chapter 13, §961. Licenses

C. No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gives notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee is given an opportunity to show compliance with all lawful requirements for the retention of the license. If the agency finds that public health, safety, or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined.

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Melissa I

Melissa is charged with plagiarism, which can result in expulsion from the (state) law school

What is the purpose of granting her a hearing? What issues should she raise? What should the school present to support its case as

the moving party? What is the value of the record of the hearing?

Should she get a hearing? What about cancelling her scholarship without a hearing?

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Melissa II

Melissa admits she plagiarized, but claims extenuating circumstances.

Thinking about the reasons for a hearing from Melissa I, how are these factors changed by her admission? How has the burden of proof shifted? Is there any factual dispute to resolve?

What does Codd v. Velger, 429 U.S. 624 (1977) (suicidal policeman) tell us? Why does it matter whether there are facts in dispute? When do mitigation facts count?

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Liberty Interests

What is a liberty interest? What are examples? How is a liberty interest different from a

property interest? In prison cases, at least, courts tend to talk about

liberty interests when the plaintiff is about to lose If it is not going to be protected, the court calls

it a liberty interest rather than property interest.

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Wisconsin v. Constantineau, 400 U.S. 433 (1971)

A state law required the posting of the names of “public drunkards” at places where alcoholic beverages are sold Did Paul concede that he was a drunkard? Does this put facts in issue? What were the provisions for challenging being

on the list? What did the United States Supreme Court hold?

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Paul v. Davis, 424 U.S. 693 (1976)

Note that this is the same term as Matthews - are they related? The sheriff gave out a list of "active shoplifters," including persons

who had not arrested but not convicted How did the court distinguish Constantineau?

What did he claim as an injury in this case? What might such a list on the Internet affect?

What did Rehnquist say was his remedy if the characterization was incorrect? What are the limits of such a remedy? This shift from constitutional to tort remedies gives a

theoretical out for the court, but one of limited value to the plaintiff.

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Stopped here

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Perverts R Us WWW sites: Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1 (2003)

State is going to list all persons convicted of a list of sexually related crimes on a public registry What does plaintiff want a hearing on before he is

listed? Why is this a relevant factual inquiry?

What did the court find? Why isn't this an additional punishment? (Hint -

Kansas v. Hendricks) If you were writing the opinion, where would you argue

that plaintiff got his due process? (Also see: Smith v. Doe, 123 S.Ct. 1140 (2003)

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Public Registries for Sex Offenders

Why are these popular? What is the policy justification? How does this affect the offender's ability to get a

job or have a place to live? How narrow are the grounds for being on the list?

How does this contribute to the guy in CA who was on the list but was able to keep a kidnap victim hostage for nearly two decades?

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Siegert v. Gilley, 500 U.S. 226 (1991)

Bad recommendations from government employer Unethical and incompetent Fired at new (government) job

Not a constitutional violation Why not? What link between the firing and the reputational injury was the

court looking for when it created the "stigma plus" category? Did the old employer fire him? What was plaintiff's remedy?

How is this at issue in the recent military mass murder by a military psychiatrist case?

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Melissa III

Melissa was charged with plagiarism but was not provided any due process protections.

Fearful of a lawsuit, the law school did not expel her, but upon her graduation it sent a letter to the State Board of Bar Examiners informing the Board that Melissa had “engaged in plagiarism in Legal Writing during her first year.”

Have her due process rights been violated under Siegert? Is this fair? What is her remedy?

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Melissa IV

In this case, the school expels her without due process and puts an entry on her transcript that she “engaged in plagiarism in Legal Writing during her first year.”

Has Melissa been deprived of liberty by the damage to her reputation?

Is a note on the transcript equal to publication? Why does this matter? Is this stigma plus?

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Codd v. Velger, 429 U.S. 624 (1977) , Revisited

Because he was a probationary employee, he had no property interest in continued employment (Codd, round one), but he claimed that the inclusion of this allegation in his personnel file damaged his reputation and made it impossible for him to find other employment as a policeman. Would the information in his file hurt his future employment? Why didn't the court say that the plaintiff could just request that

the file not be forwarded to a new employer? Did this change the rationale for a hearing?

Why? This has become an important limitation on hearing rights.

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Homeland Security and the CIA

One of the big fights over the Homeland Security Bill is its limitation of employee hearing rights Security agency personnel are subject to firing without

stated cause and get no hearing. The Homeland Security Act extends the definition of a

national security job to many more employees, who thus lose civil service protection

Why do this? Is this a good idea?

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Job Security in Public Workplaces

What is the traditional trade-off between a public job and a private job?

How can job security for government employees hurt the general public?

What has been the trend for job security in private employment?

What is the cost of reducing job security for public employees?

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The Prison Basics

LA Stats Look at the rate and the cost per prisoner

What can explain the low per prisoner cost? Many are old and no threat to the public What is the state's track record for efficient programs? What do you suspect is the basis for such low per

prisoner cost? How does the dysfunctional public defender system

contribute to the incarnation rate? What are the long term implications of this system?

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Prisons

Are prisons part of the criminal law system or the administrative law system?

Why have prison populations doubled and tripled relative to the population over the past 30 years?

Learning to think like an economist: Who benefits from tough laws, esp. drug laws? Who benefits from prisons? What is the tradeoff for the increased prison budgets?

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State Prison Litigation:42 USC 1983

State prison cases are mostly filed under 42 USC 1983, alleging that the state deprived the prisoners of their civil rights. Due process claims, such as Sandin "Cruel and unusual punishment claims" which

generally deal with conditions of confinement or medical care.

Prison Litigation Reform Act of 1995 requires exhaustion of remedies in prison litigation, even if the administrative system cannot provide the requested remedy, if the system can provide some remedy

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Prisoners as Litigants

Successful litigation is mostly by NGOs - ACLU, prison rights organizations, AIDS organizations

Individual prisoners Do prisoners have a lot to do with their time? Do most prisoners have sophisticated legal talents? Do prisoners like to give the prison grief? What is most prisoner litigation going to look like?

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Due Process Claims

Due process claims require the plaintiff to show that he had a liberty interest in the proceeding.

Even if the court finds a liberty interest, that just lets the prisoner get a hearing or get into court.

Courts generally defer to the prison on matters of discipline and security

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Good Time Credits and Parole to Reduce Time Served

Are these constitutionally required? Why have them? The Sentencing Reform Act of 1984 eliminated

parole and reduced good time credits in the federal system Combined with the expansion of federal crimes,

this has lead to an explosion of federal prisoners

Same in many states

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Cases that Affect Time Served

Why would procedures that affect release dates get the most legal protection?

Return to prison for a parole violation (Gagnon) Should the prisoner get a hearing? Why - what might be contested?

Decisions reducing good time credits or affecting parole (Morrissey/Wolff) How does these look like Goldberg benefits?

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Sandin v Conner, 515 U.S. 472 (1995)

Prisoner got 30 days in solitary as punishment. Is this cruel and unusual? (remember, it has to be

both) Is he entitled to a hearing?

Only when discipline "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life" is due process implicated.

The Court rejected a claim that punishment of solitary confinement for 30 days was enough to trigger due process requirements.

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Wilkinson v. Austin, 125 S.Ct. 2384 (2005)

The Court concluded that indefinite placement in a "supermax" prison together with a disqualification from parole was enough to trigger due process requirements.

What does it mean to be in a supermax prison? Why do we put inmates in them? Wonder if the supermax mattered at all

Does a hearing before the prison officials really mean much?

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What rights does a prisoner retain?

Some freedom to exercise religion Some limited right to communicate with the

outside A little bit of free speech Some bodily integrity, at least in the area of

medical care Freedom from beatings and the like through

FTCA/Bivens, 42 USC 1983, and state laws.

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Trade-offs in Prison Regulations

Assume you have been hired to develop a new set of prison regulations for Angola.

What are the tradeoffs you must deal with? What happens if prisoners have lots of rights? What if prisoners have no rights? Do more detailed regulations increase or reduce

prison discretion? Increase or reduce conflicts over rules?

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How Can Prisoners Enforce their Rights?

Should jailhouse lawyers get special (positive) treatment in court?

How much latitude should outside lawyers have in asserting rights for prisoners?

Should there be different rules for juvenile prisons? Who decides about representation for kids if

the parents are not fit? What about medical decisions for them?